Libel, or written defamation, has been defined as any published writing wrongfully exposing the subject to public contempt, disgrace, hatred, scorn or shame, or tending to induce an evil opinion injuring the subject in his or her profession, occupation or trade. That sounds like some of the music reviews I read every week. If I haven’t been associated with the project, or don’t like the artist or material being reviled, I can enjoy a nasty and humiliating review as much as the next guy. But if I worked on the project, or am friends with the people who did, some negative reviews can be downright hurtful.
If your confessional collection of heartfelt songs is trashed by an unkind reviewer, it can be devastating. You’ve spent lots of time and money, and have invested the hope and confidence of friends and loved ones, bearing your soul and sharing your art. You’ve successfully beaten the odds and gotten a copy of your independent release into the hands of a reviewer at a respected paper or magazine. A good review makes a great addition to your press kit and provides much needed publicity. It may boost tape sales and attendance at your shows, which may enable you to break even or order additional pressings. But a nasty review can stop your tape sales cold and shatter your confidence. And it’s preserved for posterity on the printed page, to be read by people who don’t know you. If your latest tape or performance has been publicly dissed by the press, can you win a lawsuit for libel against the writer or the publication in which the review appears? Despite the very real damage, probably not.
Artistic criticism is protected by the same constitutional shield that protects your lyrics–the First Amendment’s prohibition of laws abridging freedom of speech and press. A public performer would have to prove a false statement of fact was made with malice, that is, the reviewer knew it was false or recklessly disregarded whether it was true or not. Proving the reviewer’s state of mind in court would be almost impossible.
Even before our Bill of Rights, artistic criticism was protected by the doctrine of “fair comment.” A review is simply the author’s opinion of your work, and we are free to have and express our opinions.
In other words, it’s part of the game. That probably doesn’t make you feel any better, so I’ll share with you one of my favorite cases, which happens to involve a very bad review and an unsuccessful lawsuit for libel. Because neither you nor I were involved in the artistic performance being reviewed, we can enjoy it, right?
This is a 1901 case coming out of Iowa. The Cherry Sisters were a vaudeville act touring the Midwest. The Des Moines Leader ran the following review of the act:
Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long skinny arms, equipped with talons at the extremities, swung mechanically, and anon waived frantically at the suffering audience. The mouths of their rancid features opened like caverns, and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and fox trot,- strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs with calves as classic in their outlines as the curves of a broom handle.
The Cherry Sisters sued the newspaper for libel. At trial, the Sisters even performed part of their show before the judge. Unfortunately for them, the judge ruled in favor of the newspaper, holding that the review fell within the realm of fair comment. His decision was upheld on appeal. For you legal eagles out there, the case cite is Cherry Sisters v. Des Moines Leader, et al, 86 N.W. 323 (Iowa 1901).
While I don’t necessarily agree that any publicity is good publicity, I encourage you to develop a thick skin. Bad reviews are a part of the music business. They come with the territory. More important, they are a part of living with free speech and a free press.